Nod to tentherism in the new GOP national plan

They’ve been telegraphing it for days, and today’s release of the House Repubs’ “Pledge to America” does indeed contain a nod to tentherism. It comes in the form of a requirement — that House Repubs are now pledged to adopt if they get control of the House next year — to “Adhere To The Constitution.”

The implication — that under liberals, the Constitution has not been adhered to — if clear enough. The full specific pledge goes like this:

“For too long, Congress has ignored the proper limits imposed by the Constitution on the federal government. Further, it has too often drafted unclear and muddled laws, leaving to an unelected judiciary the power to interpret what the law means and by what authority the law stands. This lack of respect for the clear Constitutional limits and authorities has allowed Congress to create ineffective and costly programs that add to the massive deficit year after year. We will require each bill moving through Congress to include a clause citing the specific constitutional authority upon which the bill is justified.”

The “limits imposed by the Constitution on the federal government” is a reference to the 10th Amendment and to the relatively brief list of powers explicitly enumerated to Congress in Article I.

The pledge, if turned into a law or rule of the House, would simply require that each law say where in the Constitution the power to make the particular law are delegated to Congress. As I have noted previously, a great many things that the federal government does, including the operation of some of its biggest and most politically sacred programs (I’m referring here to Social Security and Medicare, but there are many others) do not rest firmly on explicitly described powers of Congress, but have been ruled Constitutional by Supreme Court using the less explicit, more elastic powers, such as the powers to tax, to spend, to regulate interstate commerce, to promote the general welfare and to do whatever is “necessary and proper” to do the other things that are listed.

That may turn out to be how this new idea of requiring a Constitutional citation in every bill turns into a non-factor. As the Wall Street Journal’s “Law Blog” notes, there is always at least a halfway credible claim of constitutional authority lurking in the background of bills, especially in those elastic clauses. I’m not sure the new requirement, if the Repubs are able to enact it, will make a huge difference. But personally, I can’t see the big problem either with asking that Congress pause and ask itself “do we have the Constitutional authority to do what we are about to do?” But if history is any guide, if it’s something members of Congress want to do badly enough, it has enough connection to commerce and general welfare to do it. Those who disagree can challenge the constitutionality with a lawsuit. But that is the system we have now, with or without the new “pledge.”

Here’s the Washington Post’s Dan Balz first reaction to the whole Pledge document, which he deems to be “a political document in the guise of a governing agenda.”

Update or oversight or something like that, for those wnho don’t normally read the comment threads:

Alert commenter Clare LaFond notes in the first comment of the thread something I had not noticed (because I wrote this post without reading the full text of the Repub “Pledge.” There is more than a nod to the Tenth Amendment in it. In the document’s preamble, it says:

“We pledge to honor the Constitution as constructed by its framers and honor the original intent of those precepts that have been consistently ignored — particularly the Tenth Amendment, which grants that all powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”


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Comments (11)

  1. Submitted by Clare LaFond on 09/23/2010 - 12:52 pm.

    The first page of the document makes an explicit reference to tentherism:
    “We pledge to honor the Constitution as constructed by its framers and honor the original intent of those precepts that have been consistently ignored — particularly the Tenth Amendment, which grants that all powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respetively, or to the people.”

    The striking phrase here is “by its framers”, which presumably allows one to ignore any judicial decisions subsequent to enactment.

    It’s probably simpler to govern if you only have to worry about two of the three branches.

  2. Submitted by Ray Schoch on 09/23/2010 - 02:23 pm.

    It’s also simpler to govern if you are able to communicate directly with the dead, and thus know exactly what the framers meant when they wrote the document in the first place. That makes it easier to ignore a couple hundred years of Supreme Court decisions and those… um… pesky Amendments tacked on after the Bill of Rights.

  3. Submitted by Tim Walker on 09/23/2010 - 02:53 pm.

    So, in summation, the GOP pledge to “Adhere To The Constitution” — if enacted — will mean no significant changes in the way things are done in Congress.

    But it sounds good!

  4. Submitted by Paul Brandon on 09/23/2010 - 03:21 pm.

    So we’ll start by abolishing the Coast Guard, the FBI, ….

  5. Submitted by Richard Schulze on 09/23/2010 - 10:22 pm.

    The Pledge does a much better job of pointing out the problems facing America than it does of solving them, and for good reason. It is an electoral document, designed to win votes in November. As such, it is so much sugar and so little sacrifice. But most of the problems facing America will require solutions—whether it be increasing the retirement age, cutting Medicare, or raising taxes—that cause real pain. Eventually, one of the parties will have to inflict it.

  6. Submitted by James Hamilton on 09/23/2010 - 11:07 pm.

    I think I might actually like to see the pledge put into practice here in Minnesota. We’d have far fewer of the type of bills Rep. Emmer and Rep. Seifert were busy promoting in recent years, knowing full well that they didn’t stand a hope in hell of withstanding a court challenge.

    Which bills? For a start, look up Rep. Emmer’s nullification proposals and Rep. Seifert’s constant pandering to those who believe Minnesota is a welfare-magnet, by proposing laws to limit benefits to newcomers, despite USSCT precedent explicitlty stating that efforts to do so are trumped by the constitional guarantee of freedom of travel within the states.

    Having said that, Democrats are far from immune to the disease. In my (thankfully) limited experience with the Minnesota legislature, the constitutionality of proposed laws rarely matters to anyone outside the judiciary committees.

  7. Submitted by Jon Kingstad on 09/24/2010 - 09:09 pm.

    James, in my experience, people in the Legislature do not set out to enact laws which they think even might be unconstitutional. There are a lot of exceptions, for example with respect to “special laws” and laws which pander to this or that group, which exist aplenty. A lot of those laws are enacted with a view to making a known unconstitutional purpose seem constitutional by swaddling it in soothing language.

    Frankly, it is undeniable that Minnesota and other states has been a welfare magnet. The problem has been that people don’t move “just” for welfare benefits, but for a better life and the hope of a career, i.e the “American dream” in some fashion. It’s racist and unfair to pillory people who are attracted to a place because they think it will be beneficial economically in the short run because they will receive welfare benefits until they get a job and support themselves in the long run but then villify them when they don’t get a job and support themselves because of local economic factors, racism, etc.

    We’re not talking minorities anymore I think with our current economy. There is a place for the Tenth Amendment, but I’m afraid Mr. Emmer and the Republican Party have no clue what it should be.

  8. Submitted by Richard Schulze on 09/25/2010 - 06:55 am.

    The Constitution is a common law document largely written by common law lawyers. It is supposed to adapt to change. The tension between respect for precedent and the present demands of justice is at the core. The judges most important job is to hold us to unpopular applications of principles we claim to respect. Of course they cannot be too far in advance of the general point of view; such ideas would not likely occur to anyone so conventionally successful, and even if they did, there is the danger that Congress might feel the need to assert its ultimate control over the Judiciary.

    What I have always found most extraordinary about the Constitution is that a bunch of powerful and ambitious politicians wrote a document to restrain people just like themselves. Instead of thinking, “What powers do I want when I’m in charge?”, they thought, “What powers do I want that low-down skunk of an opponent of mine to have when he is in charge?”

  9. Submitted by Ray Schoch on 09/25/2010 - 09:00 pm.

    Before we take “The Pledge” too seriously we should allow ourselves to be reminded that it is, almost word-for-word, the same thing Republicans have been saying for at least a decade, so there’s literally nothing new in it.

    Stewart’s riff on “The Pledge” doesn’t pretend to be gentle, but it’s accurate, which ought to be disheartening to all of us, since the same words being used a decade later reflect the same problems, about which little or nothing has been done.

    “The Pledge” also comes from the political party that’s responsible for turning a federal budget surplus into a trillion-dollar debt, not to mention the biggest expansion of the federal government since World War 2, as well as the associated intrusions into individual rights embodied in the “Patriot Act.” None of these developments lend credibility to Republican claims to want “fiscal responsibility” or “smaller government.”

    Richard Schulze is dead-on, I think, in both #5 and #8. Though “The Pledge” is a bad joke, we have serious structural economic problems that MUST be addressed, and no matter what political party does it, the process is not going to be popular. Workable solutions ought to, of necessity, inflict pain on every social and economic stratum. If not – if the wealthy are allowed to keep their millions while the rest of us forego medical care and retirement, or the middle class gets to keep its perks while both ends of the spectrum get the shaft – we could be in big trouble as a society. “Equitable” solutions may not, in fact, be “equal.”

    The Constitution is an amazing document, and even more so when we consider the political and economic situation of its authors. Its continued relevance and, if you will, “life,” more than 2 centuries after its creation, attests to the thoughtfulness and fair-mindedness of its creators, who would, I’d guess, be pilloried by zealots of several political persuasions if they were to run for office today. The document isn’t perfect, as minorities and constitutional scholars will both remind us, and justifiably so, but given that this sort of government had literally never been tried before, it’s been remarkably successful, and holds up to examination very well centuries later. I used to tell my students in American history and American Studies that one of the really cool things about living in this country was that we’re all part of a gigantic socio-political experiment, and just because it’s lasted 200 years doesn’t mean it’s going to last another 200. We each shape the country a little bit every day.

    As for “Tentherism” itself, in the future, should a Republican Congress pass a law on a hot-button social issue, and the Supreme Court uphold the inevitable court challenge, one wonders how “Tenthers” might respond if the Governor of, say, Massachusetts, were to say, “No, thanks. We think the federal government has exceeded its authority, and we’re going to ignore that law no matter what they say in Washington.”

    “Tentherism” strikes me as political expediency by people out of power.

  10. Submitted by Melodie Morstad on 09/25/2010 - 09:03 pm.

    I think it’s amusing (and not a little scary!) how some people treat the Constitution like it’s the inspired word of God, instead of an exceptional document by human beings from a particular social class and particular time in history. I guess I shouldn’t be too surprised that the people who are fundamentalist in regard to the Bible are fundamentalist in their views on the Constitution.

  11. Submitted by Paul Landskroener on 09/27/2010 - 10:27 am.

    Re requiring citations as to constitutional authority within each bill: Many bills already contain “findings” in which Congress “finds” that the circumstances exist that authorizes it to legislate on the topic. For example, in the health care reform bill Congress made the following findings: “IN GENERAL- The individual responsibility requirement provided for in this section (in this subsection referred to as the `requirement’) is commercial and economic in nature, and substantially affects interstate commerce, as a result of the effects described in paragraph (2).” Those effects are then described in detail in para. (2). This is and has been done commonly for years, especially if there is ANY question a to Congressional authority.

    Furthermore, the Supreme Court has held that it doesn’t really matter what Congress THOUGHT its constitutional basis was; the Court will presume all legislation to be constitutional and will uphold it if ANY constitutional basis can be found to do so, even if it’s different than the one Congress cited. For example, with the health care bill, even if the Court reverses itself and says that insurance is NOT interstate commerce, it could still uphold the bill as an exercise of the general welfare clause.

    The Republicans know all this, of course. This is simply another transparent attempt to turn a political argument into a constitutional-legal one. Shameful.

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